Wednesday, February 22, 2012

Departmental inquiries need not be conducted in accordance with the technical requirement of criminal trials, but they must be fairly conducted and in holding them, considerations of fair play and natural justice must govern the conduct of the IO.

Statements recorded in criminal proceedings cannot be relied upon in departmental inquiries. The witnesses have to be produced during the inquiry and subjected to cross-examination.

It is within the jurisdiction of the IO to fix up venue of the inquiry provided no prejudice is caused to the CE thereby.

Prosecution case (case by the PO) should be produced first before the IO.Asking the CE to appear and produce his witnesses first, is contrary to procedure of inquiry and principles of natural justice.

The IO should not question the CE extensively and repeatedly.

The CE should be given full opportunity to produce evidence in his behalf and to examine himself.

Cross-examination of the witnesses is a very valuable right.

The CE must be afforded every opportunity to cross-examine the witnesses of the PO.

If the CE wishes to lead oral evidence, the IO should not dispense with the oral inquiry on the ground the case was based on documents – in fact, on any grounds.

Where charge is based on adverse entries in the confidential reports, the officers who wrote the reports are material witnesses and should be examined.

The IO should apply his mind before allowing additional evidence and record an order in that behalf. In such a case, the CE is entitled to an appropriate adjournment and also to produce new evidence to meet the additional evidence being produced against him.

The principles of natural justice demand that the CE should be supplied with a copy of the written brief filed by the PO. The CE should be required to file his written brief thereafter. Failure to supply such a copy would result in denial of reasonable opportunity to the CE.

Tuesday, February 21, 2012

The IO cannot look into any ‘unspecified’ records for reaching his conclusions.

The CE is entitled to inspect all documents relied upon by the IO in his report.

Full copies of the statement made by the prosecution witnesses during the preliminary inquiry should be supplied to the CE.

It is unjust and unfair to deny the CE copies of the statements of witnesses examined during investigation and produced at the inquiry in support of the charges leveled against him. A synopsis does not satisfy the requirements of giving the CE a reasonable opportunity of showing cause against the action proposed to be taken.

When a witness is being produced during the inquiry, his earlier statement cannot be denied to the CE on the ground that it is confidential or secret.

The IO cannot be a witness.

All evidence must be recorded in the presence of the CE.

The CE must be given full opportunity to cross-examine the witness appearing against him.

The CE is permitted to adduce evidence in his defence and is also allowed to examine himself, if he so desire.

The DA cannot be a witness.

Tape recorded evidence is admissible in departmental inquiry, but such evidence is not direct/primary evidence and should be used for the purpose of corroboration.

The IO must take all necessary steps to ensure the presence during inquiry of the DR nominated by the CE.

Refusal to DR from a Government servant who is already rendering defence in two cases does not result in denial of reasonable opportunity.

At the time of appointment of the PO, the DA should inform the CE of his right to DR.Defence assistance by legal practitioner should be allowed where the case against the CE is handled by the trained PO.

Where the PO is a legally trained officer, the CE is also entitled to defence assistance from a legal practitioner.

The CE must be provided an adequate opportunity to inspect, take extract (which includes making of full copies, where he considers it necessary to do so) the various documents cited in the charge sheet, and those held relevant for his defence.

Though normally a copy of the report of the preliminary inquiry is not to be supplied, it may have to be furnished to the CE if it is mentioned in the charge sheet and is relied upon during the course of inquiry.

Refusal of access to relevant documents is against the principles of natural justice and of the requirements of the Article 311(2) of the constitution.

The CE is entitled to both ‘Listed’ as well as ‘Additional’ documents.

Supply of copies of documents is not an essential requirement. It is sufficient if the CE is allowed to inspect them, to take extracts or to make out copies as he likes.

The CE may make verbatium copy of the entire document while inspecting the document.

No restriction can be put as to the type of the note that may be taken by the CE of a particular document. The CE may take such notes either in ink or in pencil as he likes.

Saturday, February 18, 2012

An admission must be expressed in writing and must contain a clear and unambiguous admission of the facts constituting the misconduct.

Admissions not made specifically in reply to a charge sheet cannot be a basis for imposing a punishment unless a formal inquiry is held.

Admitting a fact here and there does not constitute admission of guilt.

Where the facts constituting the charge are admitted in a clear and unambiguous manner, it amounts admission to a plea of guilt.

Where the facts constituting the charges are admitted, it is not necessary to hold an inquiry.

The IO must not have any personal interest in the case.

The IO must be impartial and have an open mind.

If an inquiry has been held by an IO who is biased or who has adopted a procedure contrary to the principles of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed.

A person who held the preliminary inquiry is eligible to hold regular inquiry, if he has not pre-judged the issues.

A person who held the preliminary inquiry and where he expresses his definite opinion holding the CE to be guilty, he will be disqualified to be appointed as IO.

Objection to the appointment of any particular IO on the grounds of bias should be taken at the earliest opportunity.

In the departmental inquiry proceedings, action and/or decision should not actuated by extraneous and collateral considerations or by bias or bad faith.

The Civil Procedure Code, Criminal Procedure Code and Evidence Act have no application to Departmental Proceedings.

A departmental inquiry is neither a criminal trial for the imposition of punishment nor a proceeding in a court of law.

Though the technicalities of criminal law may not apply to departmental inquiry proceedings and the strict mode of proof prescribed by the Evidence Act may not be adopted with equal rigour, but even in departmental inquiry proceedings, the charges framed against the CE must be held to be proved before any punishment can be imposed on him.

As regards amendment of charge-sheet during te course of inquiry, the DA has an inherent right to amend, substitute or drop a charge at any time but the exercise of this power should be restricted to minimum.

Two principles of natural justice are: (i) The proceedings must be free from prejudice or any kind, and (ii) The CE must have an adequate opportunity to present his defence and prove his innocence.

Adequate (reasonable) opportunity has two ingredients: (i) A proper notice, and (ii) A reasonable hearing.

The purpose of the charge sheet is to give due notice of allegation to the charged employee so that he understands clearly the lapse or misconduct on his part.

The charge sheet must be framed in specific and concrete terms with full particularity relating to the date, time, place and nature of occurrence and must also cite, in sufficient detail, the documentary and oral evidence in possession of the DA to prove the allegation.

Friday, February 17, 2012

Departmental Inquiry proceedings are quasi-judicial, in nature. A judicial approach is necessary while dealing with such cases.

The procedure adopted in the departmental inquiry must be fair and reasonable and it should also bear a convincing appearance that justice has been done.It is absolutely necessary and essential for IO, PO, CE and DR to know the provisions of the departmental inquiry proceedings fully and adequately.

The ‘Oral Inquiry’ is an important part of the departmental inquiry proceedings. ‘Oral Inquiry’ and ‘Personal Hearing’ is one and the same thing. An ‘Oral Inquiry’ is intended to afford to the charged employee an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witness(es) in support of his defence.

An inquiry cannot be dispensed with merely for convenience of the employer, or on the presumption that the CE cannot improve his defence by personal hearing.It is absolutely essential that the inquiry proceedings are held in accordance with the prescribed procedure.

It is absolutely essential that there is no violation of principles of natural justice resulting failure of justice in the inquiry proceedings.

The Inquiry Officer (IO) should hold inquiry in accordance with the prescribed procedure, which should be free from any legal hole pricking on a future date.

The Presenting Officer (PO) should present the case to the best of his ability so that the case does not go by any default on his part.

The Defence Representative (DR) should do his best to help the Charged Employee (CE). CE feels distress, as such the DR should always endeavour to do his best in rendering his assistance in the departmental inquiry.

Departmental Inquiry is also known as departmental enquiry or domestic enquiry. Its proceddings are also known as disciplinary proceedings.

The departmental inquiry proceedings have a dual purpose. They are intended (i) to help the Disciplinary Authority (DA) to assess the guilt of the CE with a view to decide further course of action, if any, and (ii) to provide the CE a chance to meet the charges levelled against him and to prove his innocence.

People generally are afraid of departmental inquiry. People find difficulty in participating in departmental inquiry.

I have been associated with departmental inquiry and thus I have the opportunity to read books, generally voluminous books, related to departmental inquiry. During my service as an officer of a bank and also as an elected representative of the officers' association, I had opportunities to participate in departmental inquiries, sometimes as Presenting Officer on behalf of the management or sometimes as defence representative assisting the charged officer. Thus, I could gain experience to learn the insight of the departmental inquiry. With a view to share my knowledge and tips related to departmental inquiry, this blog is being developed by me. This is a small effort to create awareness on departmental inquiry.

No one should be punished without giving him an opportunity to defend himself and a judicial approach is necessary in the procedures of departmental inquiry. The procedure adopted must not only be fair and reasonable but should also bear a convincing appearance that justice has been done. I will try to present important tips in a summarized way.

I hope that this effort will be appreciated by the readers of this blog. I look forward to receive your feedback.